Breaking Up Is Hard To Do -- Part II of II (the Solution)

We all know that an organization is only as good as it’s employees and the first rule is to properly train and retain our stars. However, from time to time circumstances warrant discharging an employee or an employee resigning or moving on. To help avoid potential claims, an employer/manager should consider the following “good business practices.” Employees should note whether their organizations are following these guidelines.

1. Investigation: Consider whether a thorough investigation of the incident or performance that led to the termination is necessary. For example, if the employee has a recent glowing performance review, a bonus or raise based on performance, or a promotion, then terminating such employee for performance related reasons may be questioned.

2. Consistency: Have other employees been treated in the same manner under similar circumstances? Inconsistent employer actions open the door to a potential claim.

3. Termination Alternatives: Is an action short of termination better suited under the circumstances, such as a written warning or probation? Termination has consequences for the ongoing business operation as well as the employee and should be well thought out.

4. Company Procedure: The complaint and disciplinary procedures set forth in the company manual or otherwise must be carefully followed.

5. Document, Document, Document: Perform periodic work reviews to discuss the employee’s performance and document the content of the review and the employee’s feedback. Document the employee’s poor performance as it occurs (for example, lateness, insubordination, and disruptive acts).

6. Termination Process: When firing an employee avoid making statements that may haunt you later, including playing down the cause of termination in order to make the employee feel good. Conversely, respect the employee and the stressful process he or she is living through.

7. Severance and Release: Consider making a severance payment or health benefits available for a period of time in exchange for a general release. Note that releases are subject to Federal and state laws and should be reviewed by counsel to ensure enforceability.

8. Last Paycheck and Benefits: Make sure you follow your state’s requirements regarding timing of the last paycheck (a pitfall many are unaware of) and provide medical (for example, COBRA) and other benefits as required by law.

9. Avoid a Defamation Claim: Refrain from discussing with third parties the reasons for terminating the employee. If you are providing a reference to a future employer, state the dates of employment and briefly explain the job responsibilities.

10. Hiring Procedures: Prevent going through the painful termination procedure by reviewing and improving your hiring and job search procedures. But that’s a topic for the future.

Feel free to share your “best practices” and experiences by posting a note below or emailing me. Also email me a note if there is a topic or question you would like to see discussed in the future.